Eugenio Espinoza Martinez v. Kathleen Anne Lozano Martinez ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00791-CV
Eugenio Espinoza Martinez, Appellant
v.
Kathleen Anne Lozano Martinez, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
NO. 12-1114-F425, HONORABLE MARK J. SILVERSTONE, JUDGE PRESIDING
MEMORANDUM OPINION
Eugenio Espinoza Martinez appeals the district court’s default final decree of divorce
from Kathleen Anne Lozano Martinez,1 arguing that he did not receive adequate notice of the
final hearing.2
Before Eugenio filed his brief, Kathleen notified this Court that she conceded error
and that the decree should be reversed because Eugenio lacked adequate notice of the final hearing.3
We abated this appeal and remanded this cause to the district court for appropriate findings of fact.
The court’s subsequent findings confirmed that Eugenio did not receive 45 days’ notice of the
1
We refer to the parties by their first names for clarity.
2
Kathleen did not file an appellee’s brief.
3
Kathleen’s letter was from an attorney who, despite our requests, did not file a motion to
dismiss or a signed notice of appearance as appellate counsel. See Tex. R. App. P. 6.1(b)-(c), 42.1.
final hearing as required by Texas Rule of Civil Procedure 245. See Tex. R. Civ. P. 245 (permitting
courts to set contested cases for trial by agreement of parties or with at least 45 days’ notice to parties
of first trial setting); see also In re Marriage of Villa, No. 05-12-00233-CV, 2013 Tex. App. LEXIS
3273, at *7-8 (Tex. App.—Dallas Mar. 25, 2013, no pet.) (mem. op.) (reversing and remanding
default decree of divorce because appellant did not receive 45 days’ notice of hearing disposing of
contested issues in divorce). As such, we reverse the final decree of divorce and remand this cause
to the district court for further proceedings.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Field
Reversed and Remanded
Filed: June 17, 2015
2